New guidelines offer unbalanced view of religion in public schools

By K. Hollyn Hollman

Church-State Intersection
February 19, 2003

Allegations that the Supreme Court "kicked God out of the public schools" have never accurately represented the court's First Amendment jurisprudence. Sure, two 1960s decisions banned teacher-led (government-sponsored) prayer and Bible reading as violations of the Establishment Clause. The same decisions, however, recognized free exercise rights and the importance of teaching about religion as part of a well-rounded education. Moreover, there has never been any doubt that student prayer — the spontaneous kind that occurs before tests — is not something the law controls.

Many cases tell us that the First Amendment requires school officials to be neutral in their treatment of religion. In addition, as the high court has noted: "There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Still, it is not uncommon to find public schools battling over the application of the First Amendment.

After 40 years of court decisions, there remains a need for education of students, teachers, and parents about the rudimentary rules of religion in the public schools. The newly released Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools issued by the U.S. Department of Education is the latest effort to provide assistance. The new guidance is the result of the No Child Left Behind Act, the sweeping bipartisan education reform bill signed into law last year. While the legislation received a lot of attention for its emphasis on accountability and mandatory testing, it also contained a provision conditioning the receipt of federal funds on certification of compliance with the Department of Education's school prayer guidance.

The letter from Secretary Rod Paige accompanying the guidance states that it "clarifies the rights of students to pray in public schools" and is intended to contribute to a common understanding of the meaning of the First Amendment in the public school setting. To that end, it follows other efforts by government and private organizations, including the Baptist Joint Committee, to articulate sensible rules for schools dealing with religion.

By design, the guidance says more about what the First Amendment protects than what it prohibits. It reflects a greater concern for free exercise than no establishment. Some argue that such an approach is justified because most violations are based upon too broad a reading of the Establishment Clause, one that amounts to hostility toward religion. Yet, plenty of examples exist where school officials ignore the Establishment Clause and engage in religious exercises with students, especially absent religious diversity in a community.

The penalty of losing federal funds (as required by statute) will apply only when free exercise is curtailed, not when religion is government-sponsored. It is one of several indications of an uneven approach toward the First Amendment. There is no mention in the new guidance of the unique environment of compulsory schools. By contrast, the 1995 Guidelines on Religious Expression in Public Schools, also issued by the Department of Education, provided that the right to engage in voluntary prayer "does not include the right to have a captive audience listen." Sensibly, the earlier guidelines recognized that school officials carry a duty to terminate activity that coerces students to participate in religious exercises.

In many aspects, the new guidance simply reflects and restates accepted principles about religion in the public schools. To that extent, it will prove useful. Helping administrators and teachers understand the First Amendment is imperative to avoid, or at least reduce the frequency of, conflicts about religion in the public schools. Unfortunately, the Department of Education, with encouragement from Congress, seems concerned with only half the issue.